Ostling law firm wants $689K

Court filings reveal that the Connelly Law Offices, attorneys for the Ostling family who last month won a $1 million verdict against the City of Bainbridge Island and police Chief Jon Fehlman, have asked for $688,535.83 in legal fees and costs.

After 11 days of trial and two days of deliberation, a jury decided the City and Chief Fehlman had failed to train Bainbridge police officers in dealing with mentally ill people, which led to the death of Douglas Ostling. In 2010, Bainbridge police officers David Portrey and Jeffrey Benkert responded to a 911 hang-up call made by Ostling. Within five minutes of entering the Ostling residence, Officer Benkert shot him, after Ostling brandished an axe. The jury awarded $1 million to the Ostling family.

Saying “countless hours and thousands of dollars were invested by Plaintiffs’ counsel on a contingent basis,” the Connelly firm argued it deserves compensation at rates of up to $550 an hour, plus a multiplier of 50 percent.

Senior partner Jack Connelly acted as trial consultant and billed 79.8 hours on the case, at $550 an hour. Nathan Roberts, an associate who has been out of law school for four years, acted as first chair on the case and billed 673.5 hours at $325 per hour.

Associate Julie Kays, a 2000 law school graduate who worked in the King County Prosecutor’s office for eleven years before joining the Connelly firm, was second chair and billed 293.5 hours at $350 an hour.

Paralegal Pamela Wells billed 275.6 hours at $125 per hour.

Their combined billable time totals $384,645. The firm is requesting an additional 50% of the base fees under a multipler, which is permitted in civil rights cases to encourage attorneys to take difficult cases on a contingent fee basis (contingent fee cases pay only if the client wins). Although an attorney takes the risk that he or she will lose the case and receive nothing, the payoff for a successful outcome can be greater under the so-called “lodestar” calculation than the customary contingent fee of 33-40% of the client’s recovery. With lodestar fees, a judge may allow recovery for actual time expended by the lawyer at a reasonable hourly rate. The fees may then be multiplied by 50% or more, depending on the complexity of the case and other factors.

Using a 50% multiplier on its base fees, the Connelly firm is asking for $576,967.50 in legal fees. The firm is also asking for $91,239.58 in costs.

In a second petition for fees, the firm updated its request to include time spent on post-trial motions, in the amount of $15,307.50 plus the 50% multiplier, for an additional $22,961.25.

The total request for fees and costs is $688,535.33.

Defense attorney Brian Augenthaler from Keating, Bucklin and McCormack argued in a responsive motion that the Connelly firm lost the bulk of its case, prevailing only on the failure-to-train element. He noted that the verdict was for $1 million, although the Ostling lawyers asked for $3-5 million.

Augenthaler reiterated defense arguments made in a post-trial motion, that the verdict itself is invalid because the the jury found that “Officer Benkert’s actions in shooting, searching, and rendering aid were reasonable and constitutional.” In spite of the finding, the jury found that Ostling’s death was caused by Chief Fehlman and the City’s failure to train their police officers to deal with the mentally ill, a contradictory decision that renders the verdict invalid.

As as result, Augenthaler argued, if fees are awarded no multiplier should be added and the base fees should be reduced by 50% to “reflect the reality of this case.”

He also claimed that the amount sought “has been inflated by hundreds of thousands of dollars through deceptive billing and non-taxable costs.” (“Non-taxable” costs in this context do not have anything to do with the IRS, but simply mean costs that are not recoverable under applicable law.) As an example of the excessive fees, he noted that Jack Connelly billed 3 hours, at a multiplier rate of $825 an hour, to watch the beginning of Mr. Roberts’ closing statement to the jury and attend court for the jury verdict.

“For these three hours of ‘work,’ Mr. Connelly asks the Court for $2,475 for his attendance at a trial in which he did not participate,” wrote Augenthaler. He argued that no attorney could charge for those items if the client was picking up the tab.

Augenthaler suggested that the steep base hourly rates requested by the firm “already reflect a premium due to the contingent nature of their work” and that a multiplier would result in a “double recovery.”

Further, he complained that attorneys did not keep contemporaneous records of their billable time, but rather “cobbled together” time entries “for purposes of asking the Court for fees.” Augenthaler pointed to anomalies such as lawyers billing significantly different amounts of time for attending the same depositions.

He also argued that the costs portion of the Connelly request includes tens of thousands of dollars which are not recoverable under the law. The most significant of those costs are $57,000 in expert witness fees which cannot be recovered in an award by the court, according to Augenthaler. In its rebuttal, the Connelly lawyers conceded that there is no law directly on point that supports an award of those costs, but argued they were entitled to them anyway.

As an interesting side note, the Connelly firm’s time entries include several notations of meetings and phone calls with former Civil Service Commission Secretary/Chief Examiner Kim Hendrickson. She was on the list of potential trial witnesses for the Ostlings, although she was not called. A court filing described her this way:

“Kim Hendrickson is the former Secretary/Chief Examiner of Bainbridge Island’s Civil Service Commission. She may testify concerning her knowledge of the hiring practices and procedures of the Bainbridge Island Police and specifically concerning her knowledge of the hiring and retention of Officers Portrey and Benkert.”

Time entries show that she had email correspondence with Nathan Roberts on December 1, 2011, around the time she was battling the City over questions related to her job performance with the Civil Service Commission. At a November 30 Council meeting, former City Manager Brenda Bauer and Council member Bob Scales criticized her lack of organization in keeping files, and suggested she was responsible for missing Civil Service files. She denied those claims.

On February 29, 2012, Connelly firm paralegal Pamela Wells billed for taking a phone call from Hendrickson, and for reviewing “articles/materials” provided by Hendrickson. Attorney Julie Kays billed three hours on March 12, 2012 for a meeting with Hendrickson. Nathan Roberts billed an hour.

The meeting took place two weeks before Hendrickson approached the current Secretary/Chief Examiner Kate Brown with the news that she’d found a tub full of Civil Service Commission applicant files in her garage. (Read more about those files here.)

Contacted by email, Hendrickson said she “reached out to the Ostling’s lawyers to inform them that an attempt was made, by Brenda Bauer and Bob Scales, to blame me for the lost (and later found) Benkert police file.”

She added, “During the course of our meeting, the lawyers learned that I was csc secretary when Dave Portrey was approved as a provisional officer in July of 2010 (indeed, I approved him), and have first hand knowledge of police hiring practices.”

The City’s insurance carrier is responsible for payment of the verdict and associated costs, and its lawyers have made motions for a new trial and judgment as a matter of law, which are pending before U.S District Court Judge Ronald Leighton. In addition to its contention that the verdict is invalid due to erroneous jury instructions that enabled the jury to reach a contradictory decision, the defense maintains that a new trial is necessary because Chief Fehlman was unable to attend the trial because of his serious and ongoing illness.